Appellate Division, Fourth Department Case Summaries: July 14, 2008

Appellate Division, Fourth Department

Child Protective Services

Indicated Report

Matter of Frederick G. and Alycia

G. v. New York State Central Register

TP 07-02699

Transferred from State Supreme Court

Background: A parent who was the subject of an indicated report of child maltreatment challenged the finding. After a hearing at which the finding was upheld, the father brought a CPLR article 78 proceeding, which was transferred to the Appellate Division.

Ruling: The Department of Social Services met its burden of establishing by a fair preponderance of the evidence that the father committed acts of maltreatment by using excessive corporal punishment. Hearsay evidence is admissible in administrative hearings and may serve as the basis of an administrative determination without violating due process or confrontation rights.

Carl F. Guy for the petitioner, and Zainab A. Chaudhry for the Central Register

Restrictive Covenants

Waiver

Empire Financial Services, Inc. v. Bellantoni

0904

Appealed from Supreme Court,

Niagara County

Background: The plaintiffs appeal a supreme court’s entry of summary judgment in favor of the defendants, who were employees of the plaintiffs. After beginning employment with another company, the plaintiffs allegedly breached the terms of the non-solicitation covenants in their employment contracts with their previous employer by continuing client relationships fostered with the first employer.

Ruling: The plaintiffs waived their right to enforce the covenants by actively encouraging the defendants to seek competing employment. There is no indication that the waiver was temporary. The supreme court’s judgment is affirmed.

James C. Roscetti for the appellants, and Linda H. Joseph for the respondents

Discovery Noncompliance

Conditional Order of Dismissal

Lauer v. City of Buffalo, et al.

07-02642

Appealed from Supreme Court, Erie County

Background: In an action for false arrest and other causes of action, the plaintiff served discovery demands, to which one of the defendants failed to respond. The plaintiff moved for a conditional order, to which the defendants also failed to respond. The order provided that if the defendant failed to respond within 30 days, its answer would be stricken without further court order. The defendant failed to provide discovery within the time period, then moved for relief from its default pursuant to CPLR 5015(a)(1). The supreme court imposed a monetary sanction and ordered the defendant to provide discovery responses within two weeks. The plaintiff appealed.

Ruling: Affirmed. In a decision by Justice Robert G. Hurlbutt, the Appellate Division overruled one of its prior decisions, Banner Serv. Corp. v. Hall, 185 AD2d 613, 587 NYS2d 872 (1992). He framed the issue as whether a party who fails to comply with a conditional order may seek relief from its discovery default by moving to vacate under CPLR 5015(a). Justice Hurlbutt concluded such relief was available. CPLR 5015(a)(1) provides, in part, that a court may relieve a party from an order on the grounds of excusable default. Based on Fourth Department precedent, the plaintiff contended the defendant’s sole remedy was to take an appeal from the conditional order, striking its answer. The Fourth Department disagreed. When a motion is granted on default, the defaulting party is barred statutorily (under CPLR 5511) from taking an appeal, and its sole remedy is moving to vacate the order entered on default.

Under CPLR 5015, the party seeking to vacate its default must show reasonable excuse for the default and a meritorious defense. A court has the discretion to accept law office failure as a reasonable excuse. The defendant provided an affidavit of its previous attorney, and also showed a meritorious defense to the action.

Nelson S. Torre for the plaintiff, and Timothy J. Speyer for defendants

Labor Law

Uncompensated Work

Fuller v. Spiesz

CA 07-02626

Appealed from Supreme Court, Niagara County

Background: A Labor Law and common law negligence suit were brought for injuries sustained while installing a metal roof on residential property. At issue on appeal is whether the plaintiff came within the class of persons covered by the Labor Law. The defendants contend he was a volunteer, not an employee.

Ruling: The labor law cause of action is dismissed. The plaintiff failed to show he was hired to perform the work. He was a longtime friend of the defendants and was not being paid for his services. While the parties had a barter agreement, the Labor Law is inapplicable. Voluntarily rendering casual assistance to a homeowner in performing a home repair or construction does not fall within the Labor Law; however, the Fourth Department held that the fact that the plaintiff was a volunteer does not affect the common law negligence cause of action.

Murray N. Caplan for the plaintiff, and William J. Kita for the defendants

Originally published by Daily Record Staff & Wire Reports.

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